Workplace Safety and Insurance
Appeals Tribunal

Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning
workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the
Workplace Safety and Insurance Board.

The worker was struck in the left eye by a recoiling winching device. He lost all vision in the eye. The Board granted the worker a 26% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying an increase in the award.Chapter 8 of the AMA Guides deals with rating impairments for the visual system. Impairments are based on three main aspects of vision: visual acuity (distance and near vision); visual field (peripheral vision); and ocular motility (movement of the eye). The evaluations for each of these three main functions are combined using tables and charts provides in the Guides, yielding a percentage impairment of the visual system. The visual system impairment is then combined using another combined values chart.In addition to rating and combining these three main functions, there are also a number of add-ons. For functions and disturbances that are not already reflected in the measurement of the three main functions, an additional 5% to 10% may be added to the visual system loss. For deformities and cosmetic impairments, an amount up to an additional 10% of the whole person may be included by combining the additional rating for disfigurement with that calculated for the whole person impairment of the visual system.The Board assessed loss of visual acuity at 97%, loss of visual field at 0%, loss of ocular motility at 0%, additional functions and disturbances at 5% and disfigurement at 4%. The Board then combined the 97% for loss of visual acuity with the 0% resulting in 97% in the left eye and 0% in the right eye, combined the 97% with the 5% resulting in 97%, combined the 97% for the left eye and 0% for the right eye resulting in a 24% impairment of the visual system, which became a 23% impairment of the whole person, and combined the 23% with the 4% for disfigurement resulting in a 26% award.The worker had no left eye function. The Vice-Chair found no evidentiary source for the only 97% loss of visual acuity or the other 0% losses.The Guides provide detailed technical charts and tables for calculating loss in relation to partial loss in one or both eyes. However, none of the tables, charts or specific guidelines in the main body of Chapter 8 refers to total loss of vision. The only explicit reference to total loss of vision in one or both eyes is found in Table 6 at the end of the chapter. According to that table, for total loss of vision in one eye, the impairment of the visual system is 25% and the impairment of the whole person is 24%. The Vice-Chair found that, for total loss of vision in one or both eyes, the values for loss of visual acuity, visual field and motility should not be used. Rather, the calculation should be based directly on Table 6. Therefore, the worker's impairment of the visual system (before add-ons) is 25%, rather than the 24% as determined by the Board.For the additional functions and disturbances, the Board assessed 5% for loss of stereoscopic vision and depth perception. The Vice-Chair confirmed that 5% rating. However, the Board combined that rating with the 97% rating for loss of visual acuity. The Vice-Chair found that to be incorrect, as the Guides provide that the additional amount for impairment of other functions and disturbances should be added to the figure for impairment of the visual system. Therefore, the Vice-Chair added the 5% to the 25% rating for impairment of the visual system, resulting in a 30% overall rating for loss to the visual system, which becomes a 28% impairment of the whole person under Table 6.The Vice-Chair confirmed the 4% rating for disfigurement. This is then combined with the 28% impairment of the whole person, resulting in a NEL award of 31%.The worker also raised other conditions, such as headaches, psychotraumatic disability and chronic pain. The Vice-Chair found that these should be adjudicated at the Board as a separate entitlement issue and not part of the vision loss.The worker was entitled to a 31% NEL award for the left eye, including the facial disfigurement. The appeal was allowed.